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Stand Your Ground statutes have been enacted in more than two dozen states in the last ten years, the product of intense lobbying from ALEC fueled by the fervor of state pro-gun groups.

This is Part 2 of a Study Series on the Use of Deadly Force. It describes changes in the classic application of self-defense, SYG and the changes it has wrought.

Part 1 covered the beginnings of the common law of self-defense (i.e. law developed in court decisions as opposed to legislative statutes). Part 3 selects cases to explore the attributes of self-defense. Then we'll tee up questions for "the other side of gun issues", whichever side that may be for you.

Once again ... These diaries resort to broad generalizations. State laws vary significantly. Cases depend on the facts of each situation, not to mention the prosecutor, judge and jury. That said ...

... let's talk about SYG and how it applies beneath that odd little Byzantine bullseye.

Disclaimers. What follows is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Criminal law and procedure is a law practice specialty. If you need advice, get it from a skilled professional.
Self-Defense: At Home and Away

Our focus has been self-defense within one’s home, for that is the most obvious and compelling case for self-defense. Many of the same principles were at work at other locations, too. And, in important ways, the laws were changing over time.

Here are the principles we started with in Part 1 as they reflect the evolution of self-defense over time:

- The threat must be present, immediate, imminent, perhaps unavoidable, depending on the jurisdiction.
- The response should be proportionate to the threat, deadly force to be used only where deadly force or great bodily harm was threatened. However, the emphasis was shifting to the threat, particularly what the defender perceived the threat to be at the moment.
- The duty to retreat waned as time went on. In some jurisdictions, the "Castle Doctrine" explicitly removed this duty in one's home on the premise that "a man's home is his castle" and practically speaking, there may be no safer place to retreat. Some others just ignored it altogether.
- There must be no provocation nor pursuit. These undercut the notion of a "defensive" use of deadly force. But the implicit confrontation in standing one's ground will diminish these cautions considerably, as we will see.
- Self-defense was to be tested by objective standards, not solely by the defender's subjective reaction. But this, too, was changing so as to give the defender more room to be mistaken without being held culpable.
- Unless the facts of a case were clear and compelling, the burden of invoking self-defense and proving it was on the shooter after charges were brought. This does not appear to be the law now emerging in some states.

Stand Your Ground Statutes

Reactions to SYG laws are a litmus test. Critics call these "Shoot First" laws. Advocates of SYG argue it merely clarified the law as it was, advancing it as to location but not in other important ways.

Sidebar. Full disclosure: my view is that Stand Your Ground laws - in their language and in their application - constitute a sea change in the traditional laws of self-defense.

As for the issue of race, I purposely screened it out in this diary series not because it isn't prevalent, but so I could deal more directly with the elements of self-defense. For Firearms Law and Policy, Lilith Gardener covered the documented racial disparities of SYG laws. a2nite drew attention to the issue in diaries on DK's group Support the Dream Defenders, seeking to revise Florida's SYG law. I believe the uneven applications of SYG based on race is one of the most potent arguments to contain, and possibly ultimately to reverse, these laws.

Beginning in 2005, the NRA and the ultra-conservative American Legislative Exchange Council became aggressively active on this issue with state legislatures controlled by Republicans. Media Matters described the beginning of the campaign to enact SYG:
According to CMD (the Center for Media and Democracy), the model bill was adopted by ALEC's Civil Justice Task Force in August 2005 - just a few short months after it passed the Florida legislature - and approved by its board of directors the following month. …

"3.  A person who is not engaged in an unlawful activity and who is attacked in any other place [other than their dwelling, residence, or vehicle] where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony."

The Florida Stand Your Ground statutes codified a confrontational right and designed it to go beyond the historical and classic concepts of self-defense.
.
These seem to be the working parts of the law in many SYG states:

- "Your ground" is any place you have a right to be ... no matter that any other person has a right to be there too. In your home, there is no question who "belongs there" (except arguably for some domestic violence situations). But wherever you are lawfully present is a very different matter.
- You have no duty to retreat and no duty to avoid a confrontation. Should that be so as a matter of policy, no matter how dumb and short-sighted a position it is to keep? Indeed, SYG is a pretty clear invitation to assert a right to confront someone even when they are on their ground. And your ground seems to move with you as you go, as in the Zimmerman case.
- When you are attacked, you can meet force with force not only to "prevent death or great bodily harm" but also, under Florida law, "to prevent commission of a forceable felony". In Florida, "forceable felony" includes carjacking, burglary and stalking (with a credible threat of violence). Note: the threat a shooter faces need not involve a weapon, simply the threat of force of some sort or the possibility that "object" he got a glimpse of was a weapon instead of a flashlight or a cell phone.
- As headlines have reminded us, counsel in some of these cases contend that the issue is whether the subjective belief is reasonable … in the client’s mind. No objective test of reasonableness need apply.

I phrase these interpretations argumentatively and in terms of questions because the implications of SYG statutory language are still being worked out case by case. Yet even if it is correct that SYG only reflected the law as it developed in a particular state over time, SYG laws are self-defense writ huge. They mainline the drug of confrontation by gun.

ALEC has used Florida's SYG law as a model and it has seen to its enactment with few variations in two dozen more states. The map is here, entitled getting away with murder.

There is even more to some of these laws. Take Florida. A related Florida statute grants blanket immunity from criminal prosecution and civil liability if the SYG defense is permitted. As we will see in the Westbrook/Hendrix case in Georgia in Part 3, local police and prosecutors took this a step farther still. They were quoted as saying they had to be able to disprove self-defense in order to hold or charge an assailant. That reversal of the burden of proving self-defense, if it holds, is a perverse contortion of self-defense.

The Association of Prosecuting Attorneys called attention to implications:

Moreover, while the traditional Castle Doctrine can provide the basis for a defense at trial, some of these "Stand Your Ground" laws, including Florida's, give the killer immunity from prosecution.  This blanket immunity is greater than the legal protections given to police officers who are involved in a shooting in the line of duty.  This grant of immunity, both civil and criminal, can sharply undermine the ability of law enforcement and prosecutors to protect the public by prosecuting acts of gun violence.
Commentators who claimed that the trial of George Zimmerman did not involve an SYG defense were wrong. True, the defense did not explicitly raise SYG in a pre-trial hearing in either the George Zimmerman case or Michael Dunn, the guy who fired ten or more shots into a car filled with teenagers. SYG can be raised in a pre-trial hearing, but it is not required to be. But Florida's standard jury instructions incorporate SYG, merging it with the Castle Doctrine and self-defense generally. Here is the Florida instruction reportedly used in both trials, which is nearly identical to the SYG statute:
If [defendant] was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.
What the law may allow, it does NOT necessarily require.

Before we go to specific cases, consider what we're doing in this territory.

Whatever the elements of self-defense may be in any given state, they are "just" legal considerations. Whatever the outcome of a shooter's case, he or she will go through the rest of life having killed another human being. Shooters report that they relive those fractions of time, often not happily. Unmanly, weak and inglorious as it may seem, backing off from a fight of any kind is almost always the wisest option.

A large and informative set of articles on these points can be found on the No Nonsense Self-Defense website. While one may not agree with all its advice (it has a gun-culture slant and it's there to sell books), the site presents an eye-opening array of things to consider before you buy that weapon for self-defense. Such as thinking through plans when danger presents and fully understanding the risks of diminished perceptions in a sudden encounter with the unexpected.

Simply meeting your state's requirements for gun familiarity training, safety education and practice at a range is not enough. They are necessary but NOT close to sufficient to prepare you to use a deadly weapon in situations calling for self-defense.

Coming up Next in Part 3 of this series:
Cases that Prove the Rule ... and Don't.
The Daily Kos Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the current Supreme Court interpretation of the Second Amendment. If you would like to write about firearms law please send us a Kosmail.

To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream, and use the link next to the heart to send a message to the group if you have a question or would like to join.

We have adopted Wee Mama's and akadjian's guidance on communicating.  But most important, be kind, for everyone you meet is fighting a battle.

Originally posted to Firearms Law and Policy on Fri Mar 28, 2014 at 02:07 PM PDT.

Also republished by Repeal or Amend the Second Amendment (RASA) and Shut Down the NRA.

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Comment Preferences

  •  I would note that recently a father discovered (1+ / 0-)
    Recommended by:
    FloridaSNMOM

    a teen boy in his daughter's bed and shot and killed him.  The father reported he entered the room and observed the naked boy on top of his daughter and assumed it was a rapist.  When he challenged the boy, the boy made a move the father interpreted as threatening so he shot him.
    The DA reported no plans to bring any charges against the father.

    This caught my eye because, thinking back to my own youthful indiscretions, to have a teen boy invited into a girlfriend's home for a romantic tryst is not unknown.  I would dare say many males could report having intercourse with their girlfriend's father in an adjacent room.  It was just striking to me that the father shot the boy without hesitation

  •  Training for safe gun use. (2+ / 0-)
    Recommended by:
    TRPChicago, Glen The Plumber

    I'm glad to see this diary point out that

    gun familiarity training, safety education and practice at a range . . . [are] NOT close to sufficient to prepare you to use a deadly weapon . . . .
    I often wonder what kind of training would be sufficient.  As far as I know, no one has even made a serious attempt to do the research to design such a program.  You see enough stories of unnecessary shootings by law enforcement officers and career firearms instructors to know that it's some where in difficulty between the training for an airline pilot and impossible.

    Mandatory Gun Insurance would provide for victims, encourage safety and not be an excessive burden on gun owners. How to do it at Gun Insurance Blog. I also make posts at Huffington as Tom Harvey.

    by guninsuranceblog on Fri Mar 28, 2014 at 07:46:37 PM PDT

    •  Good point. The only programs I've heard of... (1+ / 0-)
      Recommended by:
      Glen The Plumber

      ... are for law enforcement and the military. I think the web site I referred to at the end has links that might lead to specialty courses.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri Mar 28, 2014 at 08:26:46 PM PDT

      [ Parent ]

      •  LilithGardner wisely suggested I underscore ... (1+ / 0-)
        Recommended by:
        Glen The Plumber

        ... the training point.

        Police get specialized training for those low-light, hazy, very ambiguous situations. And emphasis in cases where innocents are present, or where the extent of the real threat is unknown and - at the moment - unknowable.

        Yet look at the slack that gets cut for civilian shooters who are untrained and of dubious judgment.

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Sat Mar 29, 2014 at 08:22:05 AM PDT

        [ Parent ]

  •  Yeah, that one strucke more as... (2+ / 0-)
    Recommended by:
    TRPChicago, notrouble

    ...STALK YOUR GROUND.

    Indeed, SYG is a pretty clear invitation to assert a right to confront someone even when they are on their ground. And your ground seems to move with you as you go, as in the Zimmerman case.
  •  You missed something. (1+ / 0-)
    Recommended by:
    theatre goon

    If person A and person B both have a right to be where they are, meaning neither had the legal mandate to run away (in perfect safety, which is almost impossible to figure out while in the middle of the scenario) from the other, then the burden returns to the standard self defense law of the state.

    And I expect that every self defense law states that the provoker of the incident cannot have their actions considered 'justified'.

    Basically, if you and john are both in the home depot, you both have a right to be there and neither of you are required to retreat (in perfect safety, but how do you know?) So if you pick a fight with john, you are also not eligible for the protection of the 'Justified' determination. Meaning, you go to jail.

    Why is this so hard for people to understand? I think it's partly the media's fault. Just look at how much the media has wound up the republican base against the affordable care act using lies and complete fabrications to manipulate emotions. The same thing is going on here to a lesser extent.

    •  Part 3 has cases that do not conform to your... (2+ / 0-)

      ... view. In fact, with SYG in Florida and Georgia, cases seem to be flipped on the point. It's the prosecutor who has to disprove self-defense. I agree, that's a ridiculous application of the law.

      As for provocation, the problem in a case where A shoots and kills B and witnesses are not present - or are equivocal or on the shooters's side - is that the only living witness is quite unlikely to admit that anything he did amounted to provocation. Any more than George Zimmerman would describe his actions after calling 911 as stalking or pursuing Trayvon Martin. Somehow, however, a kid who just looked suspicious to George before he called the police turned into a life-threatening assailant.

      It may be true, of course, but the situation presented a lot of questions to be asked that weren't answered ... and may not have been asked very well.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sat Mar 29, 2014 at 06:09:23 AM PDT

      [ Parent ]

      •  Innocence until guilt. And evidence. (1+ / 0-)
        Recommended by:
        Kasoru
        In fact, with SYG in Florida and Georgia, cases seem to be flipped on the point. It's the prosecutor who has to disprove self-defense.
        Innocent until proven guilty. We, as a media-saturated culture, have lost the adherence to that standard. In place of actual dedication to the idea of innocence until guilt is proven we have the use of the word "alleged". It is a poor replacement.
        As for provocation, the problem in a case where A shoots and kills B and witnesses are not present - or are equivocal or on the shooters's side - is that the only living witness is quite unlikely to admit that anything he did amounted to provocation.

        Evidence. We have at this time more access to forensic evidence than at any other time in history. The time has long passed when what a person says is the only available source of information about an incident.

        But this also must take into account the response to the second half of that paragraph...

        Any more than George Zimmerman would describe his actions after calling 911 as stalking or pursuing Trayvon Martin. Somehow, however, a kid who just looked suspicious to George before he called the police turned into a life-threatening assailant.
        We have evidence, but we have largely lost our ability to scrutinize rationally. This applies to both sides of the gun control debate. I cannot count how many times I have attempted to talk down a right-side person from the emotional stance of holding firm on guns by pointing out that all you need is a $100 set of metal files and a chunk of steel to make a gun and/or ammo - so they won't EVER be able to be removed from the population. And I cannot count the amount of times I have tried to talk down a left-side person from the emotional stance of holding firm on gun confiscation by pointing out the exact same thing - so they won't EVER be able to be removed from the population. Neither side seems able to calm themselves enough to wipe the (figurative) spittle from their chins.

        And this is a problem, because having quality evidence only goes so far.

        Perfect blocks of granite in the hands of a piss-poor sculptor become crappy shapes. Poor blocks of granite in the hands of michelangelo become legendary. This applies to information handed to juries as well - awesome forensics placed in the hands of poorly-informed media-saturated people on a jury result in that guy Dunn being not-convicted on the charges relating to the guy he actually killed.

        Crappy information placed in the hands of better-informed media-resistant people on a jury result in better outcomes that are based on a law that applies to all regardless of irrelevancies. Take the marissa alexander case, for example. There was a landslide right here on this site of emotional-based support for her, when what she actually did was shoot at a person with intent to cause fear. The support for her on this site seemed to ignore that, without considering what it actually would mean if such a thing would be allowed to become precedent. Many said "Nobody got hurt so what's the problem?".... If LIBERALS say it's okay to shoot near someone in order to cause fear, then what sort of applications might the neocons find for that precedent? If LIBERALS said that such dangerous-to-bystanders behavior was okay as long as nobody actually got hurt, what sort of applications might the DUI-prone people find for that reasoning?

        I think I belong in the second group, because I was one of the few who shouted loud and proud about how what marissa did was wrong, at personal expense of many HR'd comments. Enough HR'd comments that I would likely have been banned on that day if this robot-moderator had been around. I think I belong in the second group due to my history of not falling for the emotional rush.

        And I see these diaries that the FLAP and RASA groups put out as attempts to create a path to a destination that has already been determined through emotion.

        •  You raise many issues, but I'll focus on one. (0+ / 0-)

          I think, with respect, that you miss one of the important reasons for the outcry about the decision to re-try Marissa Alexander.

          The core issue is now the discretion Angela Cory exercised - after she served two years from the previous trial (which conviction was reversed) - to retry on charges carrying up to 60 years in prison in a case where there was no injury. And given the, ah, flexibility shown by Alexander's estranged husband in his recounting of the details.

          That is Les Miz, the triumph of pursuing a man throughout his life for a minor theft, while others commit far greater crimes and injustices ... because that is what the law requires.

          Yes, of course, cases should rest on the presentation of evidence before a court and jury and on correct and sensible jury instructions. Yet what investigators and prosecutors actually do in those cases has a lot to do with the majestic application of the law. And it is the Florida legislature who wrote a pretty perverse set of SYG laws, and Georgia who is about to neuter law enforcement amidst the most liberal gun law in the nation.

          You seem to worry about precedent and consequences. I assure you, so do I.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Sat Mar 29, 2014 at 03:15:31 PM PDT

          [ Parent ]

  •  Thanks for exposing the SYG concept as vacuous (2+ / 0-)
    Recommended by:
    TRPChicago, Glen The Plumber

    Parts 1 and 2 contain a great outline of the basic issue, (which smacks of ethical collapse, IMO). Thanks for the hours you took, TRP, to lay it out for us in such a matter-of-fact format.

    I have deep concerns about the erosion of the principles of civility in these SYG type laws as presented. A basic respect for life seems to be missing, having been replaced with an empowerment of personal vigilante justice (first inside the home, then, ah, beyond).

    Yes, here's one slice of this "sea change":

    Somehow, however, a kid who just looked suspicious to George before he called the police turned into a life-threatening assailant.
    The burden of responsibility should be on every gun owner, those who choose to be "prepared" to settle such matters with a gun. These shoot first/shoot anywhere laws, under one blanket, have re-defined what murder is by exonerating gun use in some VERY marginal situations...without investigation. The results: not very civilized.

    I took little issue with gun guys and their 2nd Amendment hooey when it seemed distant. Even with the white supremecists in ID, David Karesh with his Barrett .50 cals in TX, even with McVeigh and his travelling gunshow "community" and his outcome in OK. They seemed to be distant gun kooks, nothing more.

    I'm even okay that some people have power and security issues, and having a firearm supposedly scratches their itch. But now, the legal basis for SYG behavior as a new normal is flat-out unacceptable. They are taking their misguided, primitive philosophy and making it okay for the unwashed masses to act out their issues with open gunplay in public places. MY places...OUR places.

    I have trouble understanding how gun rights advocates have met such success in their SYG pathology. Seriously, is this "sea change" really happening? SYG is a boat that will not float given the definition of civil society.

    So bring on the careful discussion. Bring on part three.

    _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

    by reasonablegunsplz on Sat Mar 29, 2014 at 09:04:32 AM PDT

    •  Thanks, reasonable! (0+ / 0-)

      I've been having trouble keeping Part 3 to a limited number of cases, and I'm resisting the urge to comment too much on each. I'm hoping they'll "tell their own stories".

      One question that occurs to me throughout: are people who are carrying a gun or otherwise have it readily at hand predisposed to use it?

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Sat Mar 29, 2014 at 05:29:34 PM PDT

      [ Parent ]

      •  Predisposed to use their guns? (2+ / 0-)
        Recommended by:
        TRPChicago, Glen The Plumber

        Well, there are two gun types which come to mind.

        The first type is very controversial to discuss. It consists mainly of males who have issues within themselves: guns offset the issues, therefore guns are desired or "needed." Sorry, but after a lifetime of observation I see that MANY who are drawn to guns are the very types who should be nowhere near them. Let's call it broken masculinity.
        As a recent example, I can present our Mr. Dunn, who threatened two wives with a handgun: both wives escaped to a neighbor couple, who related these incidents on camera.

        Is the first type pre-disposed to used guns? Most certainly. And they are driving the current (and very unfortunate) pro-gun legislative blitz.

        The second type is made up of common citizens who accept the current U.S. gun mentality. Meet "Mrs. Smith" and her husband, new residents in a Florida community who received a nice "meet and greet" from the local neighborhood watch commander. His name was George Zimmerman, and she offered him coffee. They had a pleasant conversation during which George suggested she get a handgun for self-protection. Let's follow her journey into the gun culture after she followed George's advice.

        She buys a gun. Following the advice of many, she goes to the nearest gun range to familiarize herself with the weapon. She is assigned a firearms instructor (all of whom, I understand, get their certification through the NRA).

        1.Within a framework of gun safety and an explanation of the local legal restrictions, she is taught to use the weapon.
        2. In this culture, she is encouraged to shoot frequently, (two times a month or more, 500 rounds/year for "proficiency.").
        3. She is encouraged to shoot the gun if she ever pulls the gun out in a confrontation.
        4. She is taught to "destroy" what she points her gun at.
        5. She is given targets which are the silhouette of the human body; she is trained to shoot at them under supervision.
        6. Our Mrs. Smith is now nonchalantly accepting, and visualizing, and even practicing, the shooting of human beings.
        7. And she is taught lethal intent with her new gun (to shoot to kill, not to wound).
        8. Within this culture, a certain faction of that gun club will promote having a loaded gun at the ready, in homes, cars, and businesses.
        9. Others there will promote concealed carry or open carry.
        10. Many will justify proven battle weaponry as acceptable in a climate already torn up by shooters.
        11. Some will frame using weaponry as a duty to protect one's family.
        11. Some at that gun range will extol personal weapons as a vanguard of freedom (Mrs. Smith, voila, is thus transformed not into George Z, but into Thomas Jefferson).

        Is the second type of common citizen pre-disposed to use a gun? The answer is "No" before having coffee with Zimmerman. But it is "Yes" after the slippery slope NRA shooting range training.

        Mrs. Smith had been a somewhat normal, healthy person, but paid money at a gun range to be indoctrinated, or at least programmed, to be a citizen killer.

        In our present climate, please note that the first type of gun supporter is manufacturing the second type, thus the importance of an effective, dispassionate FLAP approach.

        _______________________________________________________________________________________ It seems to me that we humans take turns being dummies.

        by reasonablegunsplz on Sun Mar 30, 2014 at 10:12:43 AM PDT

        [ Parent ]

  •  Who is confronting whom? (2+ / 0-)
    Recommended by:
    Sharon Wraight, Glen The Plumber
    "You have no duty to retreat and no duty to avoid a confrontation. Should that be so as a matter of policy, no matter how dumb and short-sighted a position it is to keep? Indeed, SYG is a pretty clear invitation to assert a right to confront someone even when they are on their ground."
    Could this happen:
    I'm shopping for light bulbs at Home Depot.  The store associate comes over to me and says "Can I help you with anything?"  And being an aggressive gun-carrying kind of guy, I pull out my Glock and say "Don't push me buddy; I'm standing my ground here."  And the store associate pulls out his S+W and says "I'm perceiving a threat."

    And my actions are perfectly legal, n'est pas?

     

    "The fool doth think he is wise: the wise man knows himself to be a fool" - W. Shakespeare

    by Hugh Jim Bissell on Sun Mar 30, 2014 at 06:22:15 AM PDT

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